Citation Nr: 0516255
Decision Date: 06/15/05 Archive Date: 06/27/05
DOCKET NO. 95-20 807A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Entitlement to a disability rating in excess of 10
percent for residuals of a fracture of the right (major)
fourth metacarpal.
2. Entitlement to a disability rating in excess of 10
percent for post-operative residuals of a right (major) elbow
injury.
3. Entitlement to a disability rating in excess of 30
percent for residuals of a right (major) shoulder injury.
4. Entitlement to a disability rating in excess of 10
percent for residuals of a right foot injury.
5. Entitlement to special monthly compensation based on the
loss of use of a creative organ.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J.W. Kim, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1973 to
December 1978.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a November 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts. The RO, in relevant part, denied
compensable evaluations for a right shoulder condition, right
elbow condition, right ring finger condition, right foot
condition, and residuals of an injury to the scrotum and
testis. The veteran timely perfected an appeal of these
determinations to the Board. In May 1997, the veteran
testified before a hearing officer at a personal hearing at
the RO.
With respect to the residuals of a right shoulder injury, the
RO increased the rating to 20 percent in a January 1997
rating decision. The RO further increased the rating to 30
percent in a November 2004 rating decision. The veteran has
not indicated that he is satisfied with this rating. Thus,
the claim is still before the Board. AB v. Brown, 6 Vet.
App. 35, 38-39 (1993).
As for the post-operative residuals of a right elbow injury,
the RO increased the rating to 10 percent in an August 1997
rating decision. Also in that rating decision, the RO
increased the rating for the residuals of a right foot injury
to 10 percent. As the veteran has not indicated that he is
satisfied with these ratings, the claims are still before the
Board. AB, supra.
Regarding the residuals of a fracture of the right fourth
metacarpal, the RO increased the rating to 10 percent in a
February 1999 rating decision. Because the veteran has not
indicated that he is satisfied with this rating, this claim
is still before the Board. AB, supra.
In June 2000, the Board, in relevant part, denied a
compensable rating for residuals of an injury to the right
scrotum and testis and remanded the other issues for further
development. In addition, the Board raised the issue of
entitlement to special monthly compensation based on the loss
of use of a creative organ.
The Board notes that the November 2004 rating decision and
December 2004 Supplemental Statement of the Case treat the
veteran's residuals of a fracture of the right fourth
metacarpal and post-operative residuals of a right elbow
injury as if they were still noncompensable and had not been
increased in the earlier rating decisions. As the RO never
formally reduced the veteran's evaluations for these
disabilities, the issues are as listed on the title page.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
REMAND
The Board observes that the requirements of the Veterans
Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A and 5107 (West 2002) [hereinafter VCAA], have not
been satisfied with respect to the issues on appeal.
Essentially, the VCAA and the implementing regulations
provide that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim if there is a reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2004). Lastly, they require VA to
notify the claimant that he or she can submit any evidence in
his or her possession.
In this case, the Board notes that the VCAA notice letter was
sent to an old address. In an August 2002 correspondence,
the veteran stated that he did not receive notice of
scheduled VA examinations and provided the RO with a new
address. The RO, however, failed to note the change of
address and continued to send all correspondence to the old
address of record, including the March 2003 and June 2004
VCAA notice letters. In a February 2005 statement, the
veteran's representative specifically points out the RO's
error in using an incorrect address in mailing the VCAA
notice letters.
The United States Court of Appeals for Veterans Claims
(Court) has held that the presumption of regularity that
attends the administrative functions of the Government is
applicable and that ordinarily it would be presumed that the
RO provided the veteran with the March 2003 and June 2004
VCAA notice letters, unless rebutted by clear evidence to the
contrary. See Baldwin v. West, 13 Vet. App. 1, 6 (1999);
Mindenhall v. Brown, 7 Vet. App. 271 (1994). The Court has
declared, however, the VA's use of an incorrect address
constitutes the clear evidence needed to rebut the
presumption that it properly notified the veteran. See
Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown,
5 Vet. App. 25, 26-27 (1993); see also Crain v. Principi, 17
Vet. App. 182, 189 (2003) (holding that even an incorrect zip
code on a VA mailing is clear evidence to rebut the
presumption of regularity).
In light of the above, although neither the March 2003 nor
June 2004 VCAA notice letter was returned as undeliverable,
the Board finds that the presumption of regularity has been
rebutted and that the veteran was not provided a VCAA notice
letter. Therefore, the RO should send the veteran and his
representative a letter that complies with the notification
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) with respect to each of the issues on appeal using
the current address of record, as reflected in the August
2002 correspondence from the veteran.
In addition, in the June 2000 remand, the Board requested, in
relevant part, a special neurological examination to evaluate
the veteran's complaints of numbness of the fourth finger of
the right hand. Accordingly, as part of a March 2003 VA
examination for bones, an EMG (electromyograph) was ordered.
However, the record does not contain the results of that EMG.
In this regard, the Board observes that records generated by
VA facilities that may have an impact on the adjudication of
a claim are considered constructively in the possession of VA
adjudicators during the consideration of that claim,
regardless of whether those records are physically on file.
See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the RO should
obtain a report of the above EMG and associate it with the
claims file.
Finally, the Board observes that the veteran has been
homeless in the past. As he may remain homeless, the RO is
required to make additional efforts when it is necessary to
contact him. Specific procedures to safeguard the due
process rights of homeless veterans are set forth in 38
C.F.R. § 1.710 (2004). Upon remand, those procedures should
be followed. However, the veteran is also advised that he
has a corresponding duty to keep VA apprised of a means of
communicating with him or her. The Court has declared that
there is no burden on the part of VA to turn up heaven and
earth to locate a veteran. Hyson v. Brown, 5 Vet. App. 262,
265 (1993).
Accordingly, this case is REMANDED to the RO for the
following actions:
1. With respect to each issue on appeal,
the RO should send the veteran and his
representative a letter that complies
with the notification requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b), and includes the provisions
of 38 C.F.R. §§ 4.16(a) and 4.16(b). In
this regard, the RO should send the
letter to current address of record, as
reflected in the August 2002
correspondence from the veteran. Among
other things, the letter should explain
what, if any, information and (medical
and lay) evidence not previously provided
to VA is necessary to substantiate the
veteran's claim. The letter should
indicate which portion of the evidence,
if any, is to be provided by the veteran
and which portion, if any, VA will
attempt to obtain on his behalf. The
letter should also request that the
veteran provide any evidence in his
possession that pertains to the claims.
2. The RO should obtain the report of
the EMG conducted in conjunction with the
March 2003 VA bones examination.
3. After the foregoing, the RO should
readjudicate the issues of entitlement to
a disability rating in excess of 10
percent for residuals of a fracture of
the right (major) fourth metacarpal,
entitlement to a disability rating in
excess of 10 percent for post-operative
residuals of a right (major) elbow
injury, entitlement to a disability
rating in excess of 30 percent for
residuals of a right (major) shoulder
injury, entitlement to a disability
rating in excess of 10 percent for
residuals of a right foot injury, and
entitlement to special monthly
compensation based on the loss of use of
a creative organ.
4. If any benefit sought on appeal
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
afforded an appropriate opportunity for
response before the claims file is
returned to the Board for further
appellate consideration.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).